Will There Be Lawsuits to Stop Arne’s and Obama’s No Child Waiver Gambit?

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While the Harkin-Enzi plan for reauthorizing the No Child Left Behind Act is legislatively comatose, President Obama’s gambit to issue waivers from the law that will effectively eviscerate its Adequate Yearly Progress provisions remain quite alive. With 11 states already petitioning for waivers (alongside others that have been pressing for them this year), the president and U.S. Secretary of Education Arne Duncan are dead set on essentially weakening their school reform agenda by taking apart the very tool that can be used to hold states and schools accountable for the children in their care.

But what if Parent Power groups, school choice activists, conservative legal organizations, and civil rights outfits push for a court injunction of the waiver effort? Such a move would once again shine light on one of the most-fervent reasons why so many have objected to the effort. It would also force Obama and Duncan to finally begin working with Congress on a revamp of No Child that will continue to spur systemic reform.

At the heart of such a legal argument is the extent to which the U.S. Department of Education can allow states to deviate from elements of the decade-old law. The department can allow some adjustments that remain in the spirit of the law (even if not necessarily in the letter of it), and has done so in the past. For example, two states — Arkansas and North Carolina — were granted waivers that allowed them to use test score growth over time as part of their school accountability efforts; the department has also allowed states to provide students in failing schools with additional tutoring services instead of exercising the law’s public school choice option (which allows families to move their kids into better-performing schools in a district).

But the Obama waiver plan is more than just a slight adjustment. By allowing states to evade accountability, Obama and Duncan are effectively allowing the states to ignore federal law. The bigger issue is what states would have to do to get that waiver: Enact college- and career-ready curriculum standards in reading, math, and science. Since curriculum standards are not written into No Child, one can argue that the Obama administration is attempting to make law. Just as importantly, the college- and career-ready standards requirements could be considered a violation of federal law banning the Department of Education from creating national curricula –especially since the requirements essentially endorse the newly-developed Common Core State Standards.

Duncan has stated publicly that the states don’t have to actually enact Common Core in order to get the waivers. But that is cold comfort to conservatives who note that the administration has essentially championed those standards; they can easily argue in court that the curriculum standards condition is a de-facto violation of federal law. On the other side, civil rights activists can use Duncan’s statement (along with the federal ban on curriculum creation) in pushing for an injunction. Why? Since the administration is waiving AYP without the ability to require states to enact new curriculum standards, it is essentially letting states off the hook, violating federal law altogether.

There are also conservatives of a more strict constructionist bent who would argue that the Obama administration can’t issue waivers at all. Why? Because under the Constitution, only Congress can pass laws; the president and his administration is only allowed to enforce them. Given that Congress often ends up giving the executive branch plenty of leeway in such enforcement through the regulatory process, such an argument may not stand. After all, on that basis, the federal Race to the Top program (which was originally funded as part of the American Recovery and Reinvestment Act) would also be illegal; but it isn’t because it actually complies with the original law itself. But given that regulations can only go as far as the law allows, one can also surmise that agencies cannot issue waivers or regulations that allow states to evade the law. Which is what the Obama administration’s No Child waiver gambit does. As Hoover Institution scholar Bill Evers argued last month in Education Next: “Imposing such conditions has never been approved by Congress, and the federal waiver law does not permit it.”

Parent Power groups and school choice activists could challenge the waivers on those grounds. More importantly, they could also argue that the elimination of AYP essentially disenfranchises children and their families, violating their civil rights. Why? As Dropout Nationreported last week, the elimination of AYP would effectively eliminate the mechanism that allow for the use Parent Trigger laws in California and Connecticut; ending AYP could also spell the end of some school choice plans targeted to families whose kids are attending failure mills. Given that the No Child Left Behind Act and previous versions of the formally named Elementary and Secondary Education Act are essentially civil rights laws, the Obama waivers could be considered antithetical to the law’s original intent. There would also be plenty of evidence — including Duncan’s move two years ago to allow Virginia to retroactively set their accountability targets in order to stay in compliance with the law — to show that the Obama administration has violated the intent of No Child at the expense of children.

Will the challenges come? As Andy Rotherham noted in an Education Next commentary, 63 percent of Beltway players surveyed by the Whiteboard Advisers report he runs with longtime player John Bailey expect a court challenge to come. As seen earlier this month in Los Angeles, where parents filed suit against the City of Angels’ school district to push for an overhaul of its teacher evaluation system, using the courts to bring equity to American public education is no longer a province of school funding activists. Given the dissatisfaction among civil rights groups with the efforts by both the administration and congressional leaders to eviscerate No Child’s accountability provisions, the unwillingness of the administration to back away from the effort, and the successful court challenges launched by those opposing implementation of the Affordable Health Care Act, it is quite likely that reformers on both sides of the ideological line will take Obama and Duncan to court.

No matter what happens, Obama and Duncan should drop their waiver gambit. From where Dropout Nation sits, the effort will damage the laudable reform efforts the administration has undertaken, especially the Race to the Top and I3 initiatives. Instead, they should push for Congress for a reauthorization of No Child that expands accountability, pushes harder for advancing Parent Power and school choice, and finally forces the nation’s ed schools to improve how they train teachers. Certainly it is difficult to do given four-year-long standoff over what the next No Child should look like. But waivers are no substitute for pushing legislatively for strong federal policy that advances reform.